A piece titled “Most world leaders have pardon power. Few use it the way Trump has,” appeared in The Washington Post on 20 January 2021, the day of Joe Biden’s inauguration. It might have been an overly critical evaluation of Donald Trump, though, if we go back and look at the history of presidential pardons in America. A president may “grant reprieves and pardons for offences against the United States, except in cases of impeachment,” according to Article II, Section 2 of the US Constitution.

Future acts are definitely not pardonable by a president. Nonetheless, a pre-emptive pardon may be granted. Also, although a few presidents have used their authority to revoke pardons, Article II contains no mention of doing so. On his first day in office, President Ulysses S. Grant revoked three of the pardons that President Andrew Johnson had granted. Washington Monthly cited Supreme Court Associate Justice Joseph Story’s 1868 Constitution textbook, which states that a presidential pardon may be rescinded in the event that the president is impeached.

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However, although both Trump and Clinton were impeached in recent history, their pardons remained in effect after their terms. Meanwhile, George W. Bush rescinded one of his own pardons. In England, the king had a longstanding custom of granting compassionate pardons and the American founders borrowed this authority. It was Alexander Hamilton who pressed the constitutional convention to include a broad pardon power exclusively vested in the president, despite some disagreement over whether Congress should have to approve pardons. Let’s revisit a few historical presidential pardons.

In 1974, Gerald Ford gave his predecessor, Richard Nixon, a “full, free, and absolute pardon” over the Watergate scandal. Ford thought a possible trial would “cause prolonged and divisive debate over the propriety of exposing to further punishment and degradation a man who has already paid the unprecedented penalty of relinquishing the highest elective office of the United States.” In 1795, two men who participated in the Whisky Rebellion – a bloody rebellion in Pennsylvania against a tax on whisky and other alcoholic beverages imposed by the fledgling federal government were pardoned by none other than George Washington.

In the Proclamation of Amnesty and Reconstruction, Abraham Lincoln granted his sister-in-law, Emilie Todd Helm, who was the widow of a Confederate general, a pardon. President Andrew Johnson’s decision to provide “a full pardon and amnesty” to everyone “who, directly or indirectly, participated in the late insurrection or rebellion” during the Civil War was a significant turning point in the pardon power. During his 13 years in office, Franklin D. Roosevelt granted the most countable pardons by a president: 3,687. Jimmy Carter issued a mass pardon for those who had evaded the draft during the Vietnam War in 1977. Former Defence Secretary Caspar Weinberger was one of six individuals implicated in the IranContra scandal who George H.W. Bush pardoned at the end of his tenure in 1992.

During his time in office, Barack Obama pardoned over 1,700 people, including hundreds who had been found guilty of nonviolent drug offences. Pardoning family members and friends is also not new. Yes, Abraham Lincoln certainly did so. In this millenium, in his final day in office in 2001, Bill Clinton pardoned his halfbrother Roger Clinton. Additionally, Marc Rich, a fugitive convicted of financial crimes whose ex-wife had been a significant fundraiser for the Democrats and the Clinton campaign, received a highly contentious pardon from Clinton.

Trump granted his son-in-law Jared Kushner’s father, Charles Kushner, a pardon. Additionally, Trump pardoned his friend, Roger Stone, Paul Manafort, a key figure in his 2016 campaign, and his political adviser Steve Bannon. Trump pardoned 29 people during his first term in office. Hunter Biden, on the other hand, is the 26th individual that Biden has pardoned. Drug offences are the subject of the majority of Biden’s pardons, a procedure that Obama initiated. Since the beginning of his first administration, there has been a notion that Trump will pardon himself. However, scholars have long been captivated by the idea of whether a president can pardon himself.

The question has never been addressed because no president has ever done it. However, when Nixon was facing the prospect of being prosecuted and going into political exile during the Watergate scandal, he asked his lawyers what his alternatives were, and one of them was to pardon himself. Trump’s hidden message was translated by his long-time friend Roger Stone in 2018: “The special counsel has awesome powers, as you know, but the president has even more awesome powers.” And President Trump tweeted, “As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong?”

Rudy Giuliani, Trump’s attorney while he was in the White House, said that the president “probably” could pardon himself. According to the New York Times, Trump contemplated giving himself, his family, and associates pre-emptive pardons in 2020, shortly before he stepped down from office, on the grounds that his political rivals would pursue him in court once he left office. A self-pardon exception to the president’s pardon authority was actually not discussed by the framers of the American Constitution. Edmund Randolph of Virginia sought to provide an exemption to the broad presidential pardon powers suggested for treason during the 1787 Philadelphia Federal Constitutional Convention.

Randolph was concerned that a president might be leading his supporters in a conspiracy and engaging in treasonous activity. However, founder James Wilson, who went on to become a justice on the Supreme Court, maintained that a president might be removed and impeached for treason, after which he may face legal action. Wilson’s reasoning prevailed in the end. A president can’t, however, absolve himself of state crimes. After his conviction in New York, Democratic Governor Kathy Hochul is unlikely to pardon Trump. And the only body in Georgia with the authority to give pardons is the five-member Georgia State Board of Pardons and Paroles.

According to news reports, Biden is apparently thinking of granting officials and allies broad pardons in advance of Trump’s inauguration. Some former officials are afraid that Trump and his supporters, who have boasted of enemies’ lists and pursuing “retribution,” may initiate investigations that, even in the absence of charges, would be financially and reputationally damaging to their targets. If Biden’s pre-emptive pardons are granted, they may include infectious disease expert Dr. Anthony Fauci, who helped fight the coronavirus outbreak and has been shunned by conservatives upset over mask laws and vaccinations. In contrast, on “day one” of his second term, Trump pledges to pardon the January 6 rioters. Thus, it goes without saying that instances of presidential pardons occurring in the US across all political stripes are startling.

Even some supporters of Biden have widely criticised him for his “selfish move” in pardoning his son Hunter. Biden is criticised by several Democrats for creating a “bad precedent.” In general, Biden’s decision to pardon his son would, at the very least, set the Democrats back decades. But a far more interesting question is whether President Trump can (or would) forgive himself for the felonies and misdeeds he has committed so far or would commit during his second term. And, what’s more intriguing is that would a future Democratic president reverse that if he did? There may be more uncomfortable moments in American history to come. Who knows?

(The writer is Professor of Statistics, Indian Statistical Institute, Kolkata.)